Yiallouros v. Tolson

MATRICCIANI, J. On March 4, 2009, appellant, Yiannis Yiallouros, 1 filed suit in the Circuit Court for Montgomery County, against appellee, John David Tolson, and alleged that appellee was liable in negligence for damages, including pain and suffering, medical expenses, loss of present and future earnings, and loss of consortium. On April 28, 2010, the jury found in favor of appellant and awarded $82,000.88 for past medical expenses, $35,191.80 for past lost wages, $409,787.00 for loss of future wages, $224,010.16 for pain and suffering, and $224,010.16 for loss of consortium. Appellee filed a motion for remittitur or new trial, which the court granted. At the conclusion of a second trial, on August 18, 2010, the jury found that appellee was negligent but that appellant was contributorily negligent and so awarded no damages.

The court denied appellant’s motions for judgment notwithstanding the verdict and for new ⁵⁶⁵ trial on January 11, 2011, and appellant filed this timely appeal on February 4, 2011. Questions Presented Appellant presents the following questions, which we have edited to comport with our discussion: I. Did the circuit court err when it ordered a new trial?

II

Did the circuit court err when it denied appellant’s motion to strike appellee’s expert testimony? For the reasons that follow, we answer yes to question one, we do not address question two as our opinion renders it moot, and we remand the case to circuit court for further proceedings. Factual and Procedural History On the night of March 15, 2006, appellant was on call as a maintenance worker for the Montgomery County Housing Opportunities Commission and traveling southbound on New Hampshire Avenue when he collided with appellee, who was turning left from the northbound lanes. Appellant sustained a transverse fracture of the left patella with displacement, requiring open reduction and internal fixation surgery on March 23, 2006. 2 Appellant’s recovery required physical therapy, during which he developed stress injuries to multiple bones in his left foot.

At the conclusion of appellant’s rehabilitation program, his therapist completed a functional capacity evaluation. The evaluation determined that appellant was restricted to occasional lifting of up to sixty-seven pounds and carrying up to forty-five pounds for one hundred feet, frequent lifting of up to forty-five pounds and carrying forty pounds for one hundred feet, continuous walking for no more than fifteen minutes, “limited” stair climbing, no ladder climbing, and no kneeling or crawling without knee pads. ⁵⁶⁶ Appellant had to use a walker, crutches, and a cane for several months before returning to “light duty” at work on February 19, 2007. But in March, the Housing Commission discharged appellant because there was no permanent light duty work and because appellant could no longer perform the tasks required by his normal position. The Housing Commission’s worker’s compensation insurance carrier retained the services of Stuart Porter, an employment counselor with the GENEX company.

He assessed appellant’s vocational abilities and refined his resume to include his skills and experience—basic plumbing, carpentry, hardware, use of hand tools, restaurant management, cooking, and customer service. Appellant applied for work with several employers but secured no interviews or offers. Appellant’s suit came to trial on April 26, 2010. Appellant and his wife testified that, after the accident, appellant suffered from boredom and the frustration of knowing that he could no longer work outside or inside the home, no longer enjoy his daily walks with his wife, and no longer entertain their friends, as was their habit.

Appellant’s wife testified that they now argue more frequently and have considered separation and divorce. Appellant called Dr. Jeffrey Phillips, an orthopedic specialist, who opined as to appellant’s disability. On cross-examination, Dr. Phillips testified as follows: Q. Okay, you mentioned on direct examination, I think near the end, that you thought that given Mr. Yiallouros’ injury, he couldn’t go back to his old work as a maintenance mechanic, is that right? A. Correct.

Q. All right, but you also said that Mr. Yiallouros is capable of working, just not in that job, right? A. Without a doubt. Q. Okay, something that’s a little less physically taxing, a little less bending, stooping, carrying, things of that nature, right? ⁵⁶⁷ A. Absolutely. Q. So, it’s not a situation where from a medical perspective, Mr. Yiallouros is totally unemployable, is that correct?

A. From an orthopaedic point of view— Q. Yes. A. —without a doubt, I agree with you. On redirect, Dr. Phillips explained that his opinion was limited to appellant’s physical capabilities: “... I don’t know what his training allows him to do.

Education, that’s beyond my ability. Pm just talking about work based on his ortho-paedic examination.” To complement Dr. Phillips’ testimony, appellant offered the opinion of Lianne Friedman. Appellee chose not to conduct voire dire or to demand a hearing to determine her qualifications, and the court designated her as “an expert in the field of vocational rehabilitation counseling and employment.” Friedman testified that she interviewed appellant and reviewed his medical history and capability assessments, and determined whether appellant could find employment in light of “what the labor market is and what the labor market requires and what employers are looking for.” She then rendered her opinion, as follows: A. It’s my opinion because of a combination of factors, but mostly because of this injury, because of his knee and foot injury, he is not placeable or employable at this time. He sustained a total loss of earning capacity.

Q. Please explain to the jury what specifically is your basis for coming up with that opinion, that he is totally incapable of working? A. Mr. Yiallouros only has a high school diploma from Cyprus. He doesn’t have any college or additional training or education. The only jobs that he has ever had either in restaurant work or as a maintenance mechanic are very heavy jobs.

They’re not sedentary. They’re not just sitting at a desk or getting up and moving around a little bit. You have to carry, lift, walk, do stairs, kneel, bend, stoop, work with tools. ⁵⁶⁸ And at his job at Housing Opportunities Commission, he did not have an assistant. He was, he did the work alone.

So he’s not able to perform any of those tasks anymore and what is required by the employer. Maybe he can still do some of those things, but he can’t do all of them. And in addition to that, if that weren’t bad enough at this point, the—he’s 61 now and the market, the labor market right now is so bad that no one is going to hire him, nobody. He doesn’t have the skills or the physical capability to do the types of jobs that he knows how to do. ...

And the jobs that he’s had, restaurant work and as a maintenance mechanic are very physically stressful jobs and that’s the only work he’s ever done. And he doesn’t have the kinds of transferrable skills like computer work or management or administrative work that could help him go back to work in a sedentary job, in a less physically stressful job. So he’s not going to be able to work. Q. He did some restaurant management, but that’s, you don’t think that’s transferable?

A. Well, but it’s, even as a restaurant manager, managers don’t just sit there. They are right in there doing all the work beside their employees. So it’s not the type of management work where you’re just sitting in an office all day. He’s out there working as well, along with his employees.

On cross-examination, appellee confronted Friedman with a document in which appellant’s employment counselor asked appellant’s treating physician to “indicate approval” of certain jobs. Appellant’s physician had checked ‘Yes” next to all six listed positions: “School Bus Driver,” “Cashier,” “Rental Car Delivery Driver,” “Shuttle Driver,” “Security Console Monitor,” and “Service Dispatcher.” Friedman explained why, in her opinion, appellant was not qualified for those positions: A. School bus driver. There are steps that—most buses you have to get up the steps throughout the day and he has problems with steps. You have to do some maintenance on ⁵⁶⁹ your vehicle and sometimes that might include bending and kneeling and crawling.

So that’s going to be a problem. And I know that he did apply for that position and was never even called for an interview. You also have to have a certain license which he does not have to drive a school bus. But physically I don’t think it’s an appropriate job.

Q. Why not? A. Well, because of the things that I just mentioned, going up and down steps and having to do some checks and maintenance on your vehicle as well. Q. The school bus driver would have to deal with the children involved? A. That too.

In case of an emergency, he’d have to be able to react and help in an emergency and with a bad leg that would not be a good idea. Q. Okay. Next, cashier. A. Cashier, most cashiers that I know that I’ve worked with stand all day long.

Very, very few get a place to sit. They’re on their feet all day long. He can’t do that. Rental car delivery driver, you’re sitting most of the day and that’s difficult for someone with his limitations as well.

The same thing, the shuttle driver has the same types of problems that the school bus driver has. Security console monitor, those jobs are not out there. They are very, very few and far between and you have to have computer skills and he doesn’t have any computer skills. And the same with service dispatcher, those are, those you need computer skills for and he doesn’t have computer skills.

And someone is not going to hire a 61-year-old and give him computer skill training when they can get someone who already has plenty of able-bodied people out there with lots of computer skills and experience in those positions. He has no experience in those positions. So, for a variety of reasons, I understand why Mr. Porter may have targeted those, but I’m sure that if they got down to an interview, which I don’t know if he had them or not, and he had taken ⁵⁷⁰ a detailed job description, he would not have been able to perform them either physically or because he doesn’t have the education and experience or skills. On re-cross examination, Friedman further explained that while appellant could potentially learn new skills, “at this age it’s not worth the time or the expense because at his age he is not going to be hired for the types of jobs that he can physically do.” Appellant’s other expert, Thomas Borzilleri, a Ph.D. economist, opined that the present value of appellant’s future lost earnings was between $330,607.00 and $404,787.00. 3 On April 28, 2010, the jury returned a verdict for appellant and awarded $32,000.88 for past medical expenses, $35,191.80 for past lost wages, $409,787.00 for loss of future wages, $224,010.16 for pain and suffering, and $224,010.16 for loss of consortium.

Appellee filed a motion for remittitur or new trial on the issue of damages. Appellee argued: [T]he award for future lost wages [shocks] the conscience given the unreliability of the expert testimony on this issue, including the extent to which the opinion of total disability from employment offered by Ms. Friedman is entirely contradicted by the Plaintiffs own medical experts. Indeed, the issue of one’s physical incapacity to be employed is a medical one, customarily within the sole province of a medical expert, and courts traditionally require contradictory medical evidence to rebut such opinions. In the instant matter, however, the Plaintiff merely presented the unsupported factual opinion testimony of a non-medical expert to rebut the uncontradicted medical opinions of Plaintiffs own medical experts, all within his own case-in-chief.

Ms. Friedman’s opinions are unreliable and lack an adequate basis. She performed almost no analysis of plaintiffs ⁵⁷¹ vocational abilities or opportunities. There was no diagnostic testing and no determination of the specifics of alternative employment that might be available to plaintiff. Her opinions as to Mr. Yiallouros’ inability to work in any occupation were directly contradicted by his treating physician, Dr. James Gilbert, as well as plaintiffs medical expert witness, Dr. Phillips.

Appellee further argued that the amount of non-economic damages awarded were “excessive and disproportionate to the injuries sustained.” At the conclusion of a hearing on June 16, 2010, the court ruled from the bench that Friedman’s testimony had been admitted in error and required a new trial on liability and damages: The Court erred and the jury was improperly influenced by expert testimony of the vocational rehabilitation witness which the Court never should have admitted into evidence. She totally lacked any factual basis, much less an adequate factual basis for opinion under Maryland Rule 5-702 and 5-703. She gave basically a “because I said so opinion.” It was interesting. I shouldn’t have let it in, I did.

The error is mine, I apologize. But it is nonetheless an error, which, in my judgment, so fundamentally affected the decision in this case as to warrant a new trial. While it is certainly true that the plaintiff suffered an injury and suffered a serious injury, by all accounts of the competent medical evidence, he has recovered from his injury. And while it very well may be he may not return to his former line of work, he is a highly skilled individual.

He ran a restaurant. He’s done all manner of gainful employment since immigrating to this country for which he is to be commended. The notion that he is simply incapable or unemployable is, to be blunt, nonsensical. The court also found that the jury’s award of non-economic damages so grossly excessive that they shocked the conscience of the court: ⁵⁷² I’ve already said the jury’s finding of future lost wages of $409,787 is without factual basis, was predicated on improper, quote unquote, expert testimony and does shock the conscience of the Court.

The non-economic losses, exclusive of loss of consortium, were determined by this jury to be $224,010.16. It’s an interesting number, but the Court finds it is irrational based on the evidence. It is against the evidence. It is against the weight of the evidence.

It is excessive, as was the jury’s conclusion that the marital unit should be awarded, interestingly enough, an identical amount for loss of consortium, $224,010.16. * * ❖ Before joining the bench, this member of the Court was for over a decade national litigation counsel for one of the largest entities on the planet. In that capacity, I either personally tried or supervised the trial of hundreds, it’s probably bigger than that, but I don’t want to overstate it, hundreds of tort cases in jurisdictions, including Maryland, all over the United States of America. In addition, I represented plaintiffs, not defendants, plaintiffs in complex cases in the State of New York, the State of Florida, the State of Maryland, and other states whose names escape me at this time. Some of the venues were plaintiff friendly, others were more kind to the defense side of the equation, but each case and each trial was different.

I have as both a trial lawyer and a trial judge seen low verdicts, high verdicts, and outlier verdicts. The verdict in this case, particularly on damages, was more than just a surprise. In legal parlance, the Court was, quote unquote, shocked, and for that reason the motion for a new trial is granted. The court convened a second trial, and appellee demanded a hearing to determine Friedman’s qualifications as an expert under Rule 5-702.

Friedman testified—as she had during the first trial—that she holds a master’s degree in rehabilitation counseling of the hearing impaired from Gallaudet University ⁵⁷³ and has over twenty years of experience in that field. In her work, she would assess her subject’s capabilities and determine whether the subject needed and could complete vocational training, then she would attempt to find a suitable job. She testified that “95%” of her present work is related to litigation, but that it still requires these steps in each case. As to her assessment of prospective job opportunities, Friedman testified: “We also have to research the labor market to see if the jobs that we think are appropriate even exist in the labor market in sufficient numbers in order to place them.

We work with employers and recruiters in order to find out what’s available in the labor market.” The court concluded the hearing by ruling that although there were “weaknesses in her predicate for rendering her opinion,” it could not find that Friedman’s opinion was without any factual basis, and that “those weaknesses can be fully fleshed out in cross-examination and otherwise but that the jury should not be deprived of her opinion.” During the second trial, appellee called Anthony Cornetto, an accident reconstruction expert, to testify. The court had ruled in limine that Cornetto could present his measurement of ground distances and his